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Wills and Probate

Wills and probate are two crucial elements of estate planning. Wills are legal documents which outline distribution of assets to designated beneficiaries. Probate is the legal process used to ensure the decedent's wishes are followed and adhere to probate laws.

The validation of will and probate process generally takes six to nine months. During this time, the designated Estate Administrator named in the Will, works with either the estate planning attorney or probate lawyer retained by the decedent. The Administrator is responsible for organizing documents, handling financial matters, contacting creditors and inventorying all estate assets

In most cases, wills and probate is simply a matter of being patient while documents are verified and legal papers are filed. However, if an heir has been intentionally disinherited by the decedent or feels he is entitled to something he did not receive, he can proceed with legal action to contest the Will.

Estate planning experts recommend executing a Will while you are in good health. Oftentimes, people procrastinate about putting their affairs in order. However, this could be the biggest mistake you'll ever make.

Most importantly, if something happens to you unexpectedly and you die without having your affairs in order, you will be leaving many decisions in the hands of others. Secondly, if you wait until you are very ill, you are setting your estate up as the stage for potential battle. Here's why...

An associate of mine recently helped her mother obtain estate planning services after she had been diagnosed with terminal cancer. The mother intentionally disinherited one of her sons and expressed her reasons for doing so in the Will.

The disinherited son threatened to contest the Will stating his mother was not of sound mind and had been under the influence of another at the time she executed her Will. When an heir contests the Will, it is their responsibility to retain legal counsel. If the probate judge rules in the heirs favor, the legal fees must be paid through the estate.

When a disgruntled heir contests the Will, it can tie the estate up in court for years and deplete monetary assets; leaving nothing for anyone but the probate lawyers. Executing your Last Will and Testament while you are healthy and in a sound frame of mind can minimize the risk of heirs contesting of the Will.

There are several ways to avoid probate altogether. Living trusts and irrevocable life insurance trusts are two popular estate planning methods. Monies held in checking and savings accounts can be transferred by establishing Payable-on-Death benefits when they open the account.

Transfer-on-death beneficiaries can be designated for individual retirement accounts and financial investments.

Automobiles, recreational vehicles, motorcycles, boats and other types of watercraft can be titled in two names. Upon the decedent's death, the second individual will be required to present an original death certificate and re-title the vehicle into their own name.

Learn more about techniques to help avoid probate in Simon Volkov's article; "Avoid Probate: Five Ways to Protect Your Assets."


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Published on February 01, 2009 at 12:16 PM

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